2013 (3) TMI 178 - AT - Service Tax

Service of order of original authority - condonation of delay in filing an appeal - held that - The learned advocate for the appellant has claimed that the factory premises of the appellant stands closed since April 2008. In this regard, she referred to the reply dated 24.5.2008 wherein it has been mentioned at paragraph 8 that due to non-cooperation of other partner, I have temporarily stopped the business. It is not the case of the appellant that they have intimated a new address for communication to the department. The reply dated 24.5.2008 also contained the same address as to which the order-in-original was despatched. Further, it is not in dispute that the personal hearing fixed on 16.6.2008 has been received by the appellant and that they have appeared on the said date. It is not the case of the appellant that on 16.6.2008 (the date of personal hearing), they have specifically informed the original authority about the closer of factory premises and furnished new address for receiving any communication. - Request for condonation of delay rejected - Decided against the assessee.

Summary

Issues:
Delay in filing appeal before Tribunal, proper service of order, condonation of delay, limitation period for filing appeal.

Analysis:

1. Delay in filing appeal before Tribunal:
The appellant sought condonation of a 50-day delay in filing the appeal before the Tribunal. The Commissioner (Appeals) had dismissed the appeal on the ground of limitation, leading to the appeal before the Tribunal for summary disposal without pre-deposit of dues. The appellant claimed their business premises were closed since April 2008, and there was no proper service of the original authority's order. They contended that they only became aware of the order in August 2010 and promptly filed the appeal without delay. However, the Superintendent (AR) presented evidence indicating that the appellant had received the order-in-original on 9.7.2008, suggesting a significant delay in filing the appeal.

2. Proper service of order:
The appellant argued that they did not receive the order-in-original due to the closure of their factory premises since April 2008. They claimed that the order might have been received by someone from a neighboring premises and not by them directly. However, the Tribunal found that the appellant had not informed the authorities of a new address for communication, and the personal hearing notice was duly received and attended by the appellant. Therefore, the claim of improper service was not accepted, and the finding of the Commissioner (Appeals) regarding the service of the order-in-original was upheld.

3. Condonation of delay and limitation period:
The Tribunal considered the submissions from both sides and examined the records. It noted that the appellant had not intimated a new address for communication despite the closure of their factory premises. The Tribunal upheld the Commissioner (Appeals)'s decision to reject the appeal as barred by limitation, citing a delay of more than two years in filing the appeal. The Tribunal referred to a Supreme Court judgment to support the conclusion that the Commissioner had no power to condone such a significant delay. Consequently, the appeal was rejected, affirming the order of the Commissioner (Appeals).

4. Conclusion:
The Tribunal upheld the decision of the Commissioner (Appeals) regarding the limitation period for filing the appeal, emphasizing the importance of timely filing and proper communication with the authorities. The COD application and stay petition were also disposed of in light of the rejection of the appeal. The judgment serves as a reminder of the procedural requirements and consequences of delays in legal proceedings within the realm of taxation and appeals in the appellate tribunal.